For troopers, social media OK, with caveats

In a public Facebook post on his pastor's page, Joshua Dowdle of the N.C. Highway Patrol seems to be agreeing with the sentiment of Dennis Love, pictured, that Muslims cannot be "good Americans."(Photo: Courtesy of Facebook)

A North Carolina trooper who appeared to agree with anti-Muslim views posted on Facebook could have run afoul of a State Highway Patrol policy intended to protect the agency’s reputation and mission, in part by forbidding speech that expresses racial bias.

The agency’s 2012 directive on social media posts allows employees to participate on Twitter, Reddit and similar forums, but places restrictions on posts that might hamper duties or cause discord within a community.

Prohibited speech, according to the policy, could lead to disciplinary action up to termination should the language undermine a patrol officer’s testimony in civil or criminal court cases.

Trooper Joshua Dowdle, who lives in McDowell County and works in Cleveland County, responded to a video by his pastor that concludes “you cannot be a good Muslim and a good American” by writing, “Amen Preacher Dennis. Too much political correctness anyway today,” according to the minister’s Facebook page.

Dowdle’s Facebook account was deleted by Thursday, after a State Highway Patrol official said the agency was looking into the matter. Dowdle did not return a Friday call for comment and declined to comment when reached by phone Wednesday.

The agency’s social media directive allows employees to express themselves as private citizens, but cautions troopers to avoid posts that negatively affect the public perception of the agency.

It was a McDowell County resident, concerned that a trooper was agreeing with online anti-Muslim sentiments, who contacted the Citizen-Times about the post.

The directive also prohibits “statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, any religion, or any protected class of individuals.”

An officer who has made biased statements could find him or herself explaining them under cross-examination, said Tony Rollman, a criminal defense attorney in Asheville.

Rollman pointed to what stands as an infamous example of a law enforcement officer answering for his biased statements, one that came amid 1995 O.J. Simpson trial in the killings of Nicole Brown Simpson and Ron Goldman.

Though social media played no role in that era, Detective Mark Fuhrman became a household name as his use of a racial epithet, and particularly his lies about uttering the word, were examined at trial.

Simpson was found not guilty of the homicides.

“If the judge believes that it would be relevant to the motivations of the officer, it could be admitted at trial, but it’s always going to be a case by case basis and it depends on the facts of the case,” Rollman said. “Any witness in a criminal case who has publicly posted a derogatory opinion could be questioned about that, subject to the court’s admission of that evidence.”

“People post a lot of things without thinking about the consequences, and I don’t think that’s specific to one group of people,” he said. “People post items they shouldn’t.”

The Highway Patrol policy walks a line that runs between individual freedom of speech and a department’s need to hold its law enforcement officers – who are charged with meting out traffic tickets and criminal charges with impartiality – to a standard of integrity.

Among other prohibitions, the policy instructs troopers to avoid posting patrol logos and uniforms on personal web pages, and mandates they keep information gathered as part of their work off social media, except as allowed with written permission.

First Amendment issues can be at play in social media posts made by public employees, but not all online thoughts are covered by a freedom of speech defense, said Robert Joyce, a lawyer and professor at the School of Government at the University of North Carolina.

If a public employee speaks out in a questionable way as part of his or her job duties, that speech is not protected by the First Amendment, Joyce said in an email.

Should the statements at issue touch on a matter of public concern – such as a presidential election – those statements could be protected.
In a third scenario, if the statements aren’t part of the employee’s job duties and do touch on a matter of public concern, the law examines where the greater interest lies, Joyce said.

“[W]hose interests are more important—the interest of the employee in exercising his free speech rights or the interests of the public employer in avoiding turmoil or material disruption in its ability to carry out its legitimate functions? A law enforcement agency, in weighing that balance, must take into account its ability to serve and protect all segments of the population and the impact of the employee’s speech on that ability,” he said in an email.

In a blog post that discusses a related issue, Joyce wrote that “First Amendment analysis of government employee speech is seldom a precise exercise.”